The need for effective training programs in law firms

October 1st, 2023
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It goes without saying that legal practice is constantly evolving and that legal practitioners must keep up with these changes. On the one hand, there is a need to have up-to-date knowledge of the law and, on the other, insight into the broader environment in which the legal practice is conducted. After all, it is the legal expertise that clients purchase from the firm and the legal practice does not operate in a vacuum. This raises the question regarding the level of training conducted by practices. Even experts in various fields of practice attain and maintain their expertise by constantly upskilling themselves, staying abreast of legal developments and ensuring that they are ahead of the curve, to use modern parlance. The growth in the number of practitioners has resulted in increased competition in the legal services market and this is compounded by other professions (most notably property practitioners and auditors) and even financial institutions offering services that were traditionally regarded as the exclusive domain of legal practitioners.

The need for training

The points raised in the previous paragraph demonstrate the need for regular training of legal practitioners to remain relevant, impart specialist advice and to compete in the increasingly competitive legal services market. Legal practitioners with outdated legal knowledge and skills run the risk of becoming a proverbial legal dinosaurs, placing the long-term sustainability and relevance of their practices at risk.

Paragraph 3.13 of the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (the Code) prescribes that legal practitioners, candidate legal practitioners and juristic entities shall ‘remain reasonably abreast of legal developments, applicable laws and regulations, legal theory and the common law, and legal practice in the fields in which they practice.’ Regular training is one of the most effective activities for law firms to ensure that they comply with their professional standards of ethics. That will significantly mitigate the risk of regulatory action by the Legal Practice Council (LPC) or errors that may result in professional indemnity (PI) liability for the firm. The Legal Practice Act 28 of 2014 (LPA) and the Code are recent introductions to the regulatory framework and only time will tell whether an enterprising and astute plaintiff will rely on a breach of the LPA and the Code in framing a claim for damages against a legal practice. A failure to exercise ‘the skill, knowledge and diligence expected of an average attorney’ is often raised in PI claims against legal practitioners (see, for example, Mlenzana v Goodrick and Franklin Inc 2012 (2) SA 433 (FB) at para 92). A lack of adequate knowledge of the law and the incorrect application of the law are some of the underlying errors that ultimately result in professional indemnity claims against legal practices. A complaint to the LPC based on a lack of knowledge of the law has the potential for significant consequences and embarrassment for a legal practice.

The adequacy of the current academic qualifications to prepare candidate legal practitioners for practice is a matter that has been debated in many circles. The adequacy of the training received by some candidate legal practitioners is also a matter that has received significant focus. Without sufficient knowledge of substantial and procedural law, one cannot successfully pursue legal practice. Successful pursuit of legal practice requires several skills over and above the knowledge of the law. Lawyers in private practice must also be entrepreneurial. Computer and financial literacy, respectively, are other areas that are often cited. All of the matters raised can be a source of a wide-ranging debate.

For current purposes, I restrict my comments to the fact that legal practitioners must constantly evaluate the gaps in training between universities and practice when they take on candidate legal practitioners. Areas where there are gaps in the training of candidate legal practitioners must be identified and adequate training programs developed to address the identified gaps to properly upskill candidate legal practitioners. A gap analysis will also assist experienced legal practitioners to identify areas where they, themselves, need to be upskilled. By agreeing to take on candidate legal practitioners the firm has, after all, undertaken to properly train those candidates in preparation for admission. The young practitioners have put their professional futures in the hands of their principals. Investing in adequate training for candidate legal practitioners will go a long way in enhancing the quality of future legal practitioners, the image of the profession and well-trained candidate legal practitioners, who can make a significant contribution to the firm. The future of the firm in an increasingly competitive market will be secured as it has internally developed high calibre candidates who can be promoted through the ranks. The organic growth of skills can be extended from candidate legal practitioners to administrative and support staff as well. Firms with a good training program will be employers of choice for potential candidate legal practitioners. Only a well-trained legal practitioner will recognise the value of an effective training programme.

Many other professions have a prescribed system of minimum compulsory post-qualification education and training programmes to be completed within defined time periods (usually a year). In various other jurisdictions members of the legal profession are also required to undergo such training. Compliance with the requirements is monitored by the respective regulators and proof of compliance must be submitted within prescribed periods and is subject to audits or other verifications. Some PI insurance companies in certain jurisdictions and professions also insist on a minimum level of post-qualification education as this is an effective risk mitigation measure. There are various names for such programs, the most common being continuous professional development (CPD) or continuing legal education (CLE). The purpose of the LPA includes the creation of a framework for the ‘development of adequate training programmes for legal practitioners and candidate legal practitioners’ (s 3(g)(iii)) and the objects of the LPC include the promotion of ‘high standards of legal education and training, and compulsory post-qualification professional development’ (s 5(h)). A system of compulsory post-qualification professional development has not been developed and implemented yet. When that system is implemented, it will go a long way in addressing some of the risks resulting from inadequate training of legal practitioners and ensuring that high standards are maintained in the profession.

Mlenzana is an often-cited case where a firm of attorneys was found liable to the plaintiff for damages suffered after the latter’s claim against the Road Accident Fund prescribed in the hands of the former. The lack of adequate knowledge on the part of the attorney dealing with that matter was lamented by the court and phrases such as ‘[the] law was lamentably misconceived’ (para 52), ‘[the] defendant’s understanding of the legal position … was materially wrong’ (para 70) and ‘… a clear misconception of the law’ (para 72) were used. The following paragraph of Rampai J’s judgment in that case should serve as a warning of the consequences of a failure to implement adequate training programmes in law firms:

‘I have to say, and it is not pleasant saying it at all, that the plain truth about this whole problem was not of [the attorney who handled the matter] Ms Smith’s own making. She was admitted as an attorney in 2003 and on 2 October 2003 she was given a huge responsibility to run not only the MVA department of the defendant but also the conveyancing department, she was a virtual novice in the legal profession at the time. She was put in the deep end and left by herself to navigate the stormy waters of the deep ocean. She was not at all equipped to do such intricate work. Her legal knowledge was still very limited. Since then, she had hardly ever attended a MVA seminar. Yet she regarded herself as an expert in the field. Her evidence was that a two-day practical training course she was compelled to attend as a candidate attorney was the only meaningful training she ever received. That, in brief, explained why the plaintiff’s claim prescribed’ (para 93).

Available training

Some legal practitioners lament the purported expense of training programs. My retort is the adage that ‘if you think education is expensive, try ignorance’. In the depressed economy, funds earmarked for training may be diverted to other areas perceived as more pressing for law firms. This increases the risks faced by the firms concerned as a lack of adequate training will increase the likelihood of errors or omissions occurring. There are several institutions that provide training to legal practitioners on a cost-effective basis. Some training is provided at no cost. Legal practitioners are urged to have regard to the training calendar of the Legal Education and Development (LEAD) division of the Law Society of South Africa (LSSA). LEAD provides training by experts and the topics are targeted at the legal profession. The Legal Practitioners Indemnity Insurance Fund NPC (LPIIF) provides risk and practice management training to legal practitioners at no cost. There is thus no excuse for a lack of proper training in law firms.

Thomas Harban BA LLB (Wits) is the General Manager of the Legal Practitioners Indemnity Insurance Fund NPC in Centurion.

This article was first published in De Rebus in 2023 (Oct) DR 10.

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